Why China won’t accept international arbitration

On December 7, China’s Foreign Ministry released a copy of China’ s position paper regarding the Philippines’ appeal to international arbitration over South China Sea disputes. It’s the first time China has outlined in detail its position regarding the case. China has long stated that it will not participate in or accept the results of the arbitration; the release of the position paper provides a legal justification for that stance.

According to Xu Hong, the director-general of the Foreign Ministry’s Department of Treaty and Law, the government decided to release the paper to clear up misperceptions of China’s position. “Some people, who do not know the truth, have questioned China’s position of not accepting or participating in the arbitration. Some others, who harbor ulterior motives, have made … accusations or insinuations that China does not abide by international law,” Xu explained. In response to those criticisms, Xu said, the position paper “debunks the Philippines’ groundless assertions and projects China’s image as a defender and promoter of the international rule of law.”

The crux of the matter is that China does not believe that the arbitral tribunal has jurisdiction to decide the case. More broadly, China rejects the notion that the UN Convention on the Law of the Sea (UNCLOS) can be used to decide South China Sea sovereignty issues, which Beijing maintains is at the heart of the Philippine case. “To decide upon any of the Philippines’ claims, the Arbitral Tribunal would inevitably have to determine, directly or indirectly, the issue of territorial sovereignty over both the maritime features in question and other maritime features in the South China Sea… The issue of territorial sovereignty falls beyond the purview of the Convention,” China’s position paper concludes. One of the first things the tribunal will have to decide is, in fact, whether it has the jurisdiction to consider the case at all. China has just made clear its position: that the case should not be allowed to move forward.

The position paper then responds to the core points of the Philippine case: that China’s claim of “historic rights” is inconsistent with UNCLOS and that China’s claims to waters surrounding maritime features exceeds the 200 nautical mile limit set by UNCLOS. China responded by saying that the underlying issue of sovereignty must be solved first. “Only after the extent of China’s territorial sovereignty in the South China Sea is determined can a decision be made on the extent of China’s maritime claims in the South China Sea,” the paper argues. In other words, before UNCLOS or other international bodies can address the issue of maritime claims, China and other disputants have to work out who owns what.

China also points out that back in 2006 it officially declared that it does not accept the compulsory settlement procedures provided for by UNCLOS, including those dealing with maritime delimitation. Since the Philippine case is effectively asking the tribunal to rule on whether or not the disputed areas belong to the Philippines’ EEZ and continental shelf, the tribunal’s decision is inevitably tied up with the process of maritime delimitation. Even if the tribunal has jurisdiction to rule on the case, China maintains it would be under no obligation to accept the ruling. “By initiating the present compulsory arbitration as an attempt to circumvent China’s 2006 declaration, the Philippines is abusing the dispute settlement procedures under the Convention,” the position paper states.

Finally, China claims that, by filing its case with the arbitral tribunal, the Philippines is violating an existing agreement to settle the South China Sea dispute through negotiations with China. “The Philippines is debarred from unilaterally initiating compulsory arbitration,” China argues, citing both unspecified bilateral agreements and the Declaration on the Conduct of Parties in the South China Sea, signed by China and the ASEAN member states in 2002. Accordingly, China claims that the Philippine case is not a goodwill effort to peacefully solve the South China Sea issue, but an attempt “to put political pressure on China.”

China’s position paper concludes:

The unilateral initiation of the present arbitration by the Philippines will not change the history and fact of China’s sovereignty over the South China Sea Islands and the adjacent waters; nor will it shake China’s resolve and determination to safeguard its sovereignty and relevant maritime rights and interests; nor will it affect China’s policy and position of resolving the disputes in the South China Sea by direct negotiation and working together with other States in the region to maintain peace and stability in the South China Sea.

China has made it very clear that it will not change any of its positions on the South China Sea due to the Philippines’ case, regardless of what the tribunal decides.